Defendant served about 26 years of a 30½ year sentence, and, after release, a search condition was added, and it did not violate the ex post facto clause. United States v. Winston, 2017 U.S. App. LEXIS 3685 (8th Cir. March 1, 2017):
Finally, Winston argues the imposition of the search condition violates the Ex Post Facto Clause because the search condition retroactively increased his penalty. The Ex Post Facto Clause prevents increasing punishment for a criminal act after the act has been committed. See U.S. Const. art. I, § 9; Doe v. Miller, 405 F.3d 700, 719 (8th Cir. 2005). In determining whether a condition is in violation of the Ex Post Facto Clause, we examine whether the condition at issue is punitive either in its purpose or in its effect. See Smith v. Doe, 538 U.S. 84, 92 (2003).
The district court noted the search condition is not “a punitive measure,” so the search condition is not punitive in purpose. The search condition also is not punitive in its effect. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) (identifying seven factors to determine whether a provision is sufficiently punitive to override express intent, including “whether it has historically been regarded as punishment,” whether it promotes the “traditional aims of punishment,” namely “retribution and deterrence,” and “whether it appears excessive in relation to the alternative purpose assigned”). Though the search condition does deter future crimes, deterrence may “serve non-punitive goals.” United States v. Jackson, 189 F.3d 820, 824 (9th Cir. 1999). The search condition also is not excessive in relation to the alternative purpose because it is limited to searches conducted in a reasonable manner at a reasonable time and only upon reasonable suspicion. Other circuits have held similar conditions are not punitive. See, e.g., United States v. Coccia, 598 F.3d 293, 298-99 (6th Cir. 2010) (holding a condition of supervised release requiring the defendant to provide a DNA sample, which the court could not impose at the time of the defendant’s sentencing, did not violate the Ex Post Facto Clause because the condition was not punitive); Jackson, 189 F.3d at 823-24 (determining imposing mandatory drug testing as a condition of supervised release pursuant to the Guidelines in effect at the time of the defendant’s sentencing and not at the time of the commission of the offense was not an ex post facto violation because the condition was not punitive). Because the search condition here is not punitive, it does not violate the Ex Post Facto Clause.